Non-WRS registered worker as self-sufficient person?

[herald2839]

Hi Everyone,

I've learned a great deal from reading others' cases here -- frankly some of the advice is better than I've gotten from a few lawyers that I've tried.

So I thought I would share my own niche issue ahead of an application to the Home Office for recognition of my status as PR. My specific circumstances and questions are set forth below.

Thanks in advance for your help,
Herald

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Factual background:

1. I am an A8 national living in the UK.

2. I am seeking to obtain recognition of my permanent residence in the UK after having exercised treaty rights for a continuous period of five years beginning 1 January 2009 and ending 1 January 2014.

3. My questions relate specifically to the first 14 months of this period, 1 January 2009 – 1 March 2010, during which time I was employed but was NOT registered with the UK’s Worker Registration Scheme for A8 nationals.

4. During these 14 months, I did not claim social benefits and relied on my salary for substantially all of my day-to-day expenses. I had substantially no other income. I held private medical insurance (provided on my employer’s policy) that I believe satisfies the CSIC requirement.

5. During this period I also held and maintained savings above the value of £16,000. (It is my understanding that under UK national law, savings above £16,000 disqualify an otherwise qualified applicant for social benefits.) The savings were held in my name and were in the form of a non-EU-domiciled mutual fund with its underlying assets invested in stocks and weekly liquidity available. I did not draw on these savings.

6. In March 2010, I registered with the UK’s Worker Registration Scheme and for the remainder of my qualifying 5 years of continuous exercise of treaty rights, I exercised treaty rights worker (and remained compliant with the Worker Registration Scheme). I do not anticipate this to be problematic or contested. I do not at present wish to contest the legality of the Worker Registration Scheme or the proportionality of its application to my situation.


Questions:

1. Was it possible for me to exercise treaty rights as a self-sufficient person during 1 January 2009 – 1 March 2010 even though I was employed in the UK at this time? Or does the fact that I was employed (although not registered with the Worker Registration Scheme) preclude my exercise of treaty rights as a self-sufficient person?

The AIRE Centre presents a similar argument on p. 4 of http://www.airecentre.org/data/files/EE ... r_2013.pdf. Has this argument withstood case law?

2. Was my presence in the UK during 1 January 2009 – 1 March 2010 legal within the meaning of Directive 2004/38/EC Article 16 (1)? Is “legal” to be construed in reference to European or national law and is there any case law in support of your answer to this?

[Obie]

You were subject to the Worker's registration requirement. For any period leading up to the abolition of the scheme in 2011, when you were not registered, your residence was not deemed lawful, unless treaty rights was exercised in another capacity.

[herald2839]

Hi Obie,

Thanks for your swift response (I didn't expect EEA law a 1.30 am on a Monday morning to spark much interest!).

Perhaps it got lost in my lengthy introduction, but my question was actually a little different to the one you answered. To rephrase: is there scope for me to argue that I was exercising treaty rights as a self-sufficient person for the period of time that I was employed but not registered with the WRS? Has anyone seen this argument accepted (or rejected) in practice or in HO guidance?

Put another way: when you say that my residence was not "deemed lawful", does that merely mean that I was not exercising treaty rights as a worker, or does it mean that by virtue of not registering with the WRS I was not lawfully present in the UK and therefore not eligible to exercise treaty rights in any other capacity?

Thanks again

You were subject to the Worker's registration requirement. For any period leading up to the abolition of the scheme in 2011, when you were not registered, your residence was not deemed lawful, unless treaty rights was exercised in another capacity.

[herald2839]

Hi everyone, I just wanted to check again whether anyone has encountered a similar situation? Can I successfully argue that I was exercising treaty rights as a self-sufficient person for the period of time that I was employed but not registered with the WRS? Has anyone seen this argument accepted (or rejected) in practice or in HO guidance?

[sheraz7]

Simplest answer over self sufficiency is that the funds/saving must be legally driven. Therefore in this perspective you may be fine if you will be able to demonstrate and convince that these funds/income is not driven from the employment that you undertaken without WRS scheme registration. For this purpose if you use your employer offered private medical insurance scheme then the caseworker may have to believe that those funds enabling you self sufficient are not legally driven. There is no harm in trying which cost you only £55.